Ebull Terms of Use

Bull Creative has developed and licenses to users its software program marketed under the name Ebull (the "Software").

Licensee desires to utilize a copy of the Software.

NOW, THEREFORE, in consideration of the mutual promises set forth herein, Bull Creative and Licensee agree as follows:

 

1. GRANT OF LICENSE

Licensor grants to the Licensee a non-exclusive, non-transferable licence of agreed number of users of the software program ("Ebull") in the United Kingdom.

 

2. TERMS

The product start date begins at the date a purchase order is signed or billing initiated. Due to variances in the volume of orders, the starting date may change at which we will notify you. ebull will not be held responsible if your campaign does not start on a specific date.

 

Ebull is not able to predict the amount of recipients that will respond or open your email. We can only report on opens, delivery rate and those factors outlined in the overview section.

 

3. RESTRICTIONS

Licensee shall not modify, copy, duplicate, reproduce, license or sublicense Ebull, or transfer or convey Ebull or any right in Ebull to anyone else without the prior written consent of Bull Creative.

 

4. PRICES & PAYMENT

The prices for goods and services displayed as displayed on the website are correct at time of publishing but are subject to change without notification. Prices are not inclusive of VAT. All prices are published in pounds (£) sterling and payment should be made in the currency set out in your invoice. Additional usage charges will be made in arrears. Payments for all services are due within thirty (30) days of invoice date. Bull Creative reserve the right to require payment in advance for any services, failing which payments for such services shall be payable in cleared funds within 30 days of receipt of invoice. Without prejudice to any other right or remedy that it may have, if the Client fails to pay Bull Creative on the due date, Bull Creative may:

(a) charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Barclays Bank PLC, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and Bull Creative may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and

(b) suspend all Services until payment has been made in full.

Time for payment shall be of the essence of the Contract.
All sums payable to Bull Creative under the Contract shall become due immediately on its termination, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
Bull Creative may, without prejudice to any other rights it may have, set off any liability of the Client to Bull Creative against any liability of Bull Creative to the Client.

 

5. WARRANTY

The Licensee acknowledges that Ebull is not error-free and agrees that the existence of such errors shall not constitute a breach of this Licence.

In the event that the Licensee discovers a material error which substantially affects the Licensee’s use of the same and notifies the Licensor of the error within ninety (90) days from the date of the first use of Ebull (the "warranty period") the Licensor shall use all reasonable endeavours to correct Ebull which does not so comply provided that such non-compliance has not been caused by any modification, variation or addition to Ebull not performed by the Licensor or caused by its incorrect use, abuse or corruption of Ebull or by use of Ebull with other Software or on equipment with which it is incompatible. The 90 day warranty period also applies to additional feature(s)that Bull Creative has agreed in writing to implement. The warranty period will commence on delivery by Bull Creative of the additional feature(s). Licensee sole remedy shall be that Bull Creative shall correct the software so that it operates according to the warranty.

To the extent permitted by law, the Licensor disclaims all other warranties with respect to Ebull, either express or implied, including but not limited to any implied warranties or terms and conditions of satisfactory quality or fitness for any particular purpose.

 

6. SOFTWARE MAINTENANCE

During the subscription Period, Bull Creative shall provide to Licensee any new, corrected or enhanced version of Ebull as created by Bull Creative. Such enhancement shall include all modifications to Ebull which increase the speed, efficiency or ease of use of Ebull, or add additional capabilities or functionality to Ebull, but shall not include any substantially new or rewritten version of Ebull.

 

7. WARRANTY DISCLAIMER

BULL CREATIVE’S WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

8. LIMITATION OF LIABILITY

Bull Creative shall not be responsible for, and shall not pay, any amount of incidental, consequential or other indirect damages, whether based on lost revenue or otherwise, regardless of whether Bull Creative was advised of the possibility of such losses in advance. In no event shall Bull Creative’s liability hereunder exceed the amount of license fees paid by Licensee, regardless of whether Licensee's claim is based on contract, tort, strict liability, product liability or otherwise.

 

9. TERM AND TERMINATION

9.1 This licence shall commence on the date hereof and shall continue until terminated in accordance with this clause or as otherwise provided in this licence.

9.2 The Licensor may by notice in writing to the Licensee terminate this Licence if:

9.2.1 the Licensee is in breach of any term, condition or provision of this Licence or required by law and fails to remedy such breach (if capable of remedy) within thirty (30) days of having received written notice from the Licensor specifying such breach or
9.2.2 if Licensee ceases to carry on business or a substantial part thereof or enters into liquidation whether compulsory or voluntary other than for the purpose of amalgamation or reconstruction or compounds with its creditors generally or has a receiver or manager or administrator appointed over all or any part of its assets or becomes unable to pay its debts as they fall due.

9.3 Either party may terminate this Licence by giving the other party not less than thirty (30) days written notice. Bull Creative will not be liable to refund any part of the licence fee if this Agreement is terminated

9.4 Termination, howsoever or whenever occasioned shall be subject to any rights and remedies the Licensor may have under this Licence or under law.

 

10. INTELLECTUAL PROPERTY RIGHTS

The Licensee acknowledges that any and all of the copyright, trademarks, trade names, patents and other intellectual property rights subsisting in or used in connection with Ebull including but not limited to all documentation and manuals relating thereto, all images, animations, audio music and text incorporated into Ebull remain the sole property of the Licensor. The Licensee agrees to immediately notify the Licensor of any actual or suspected infringement and the Licensee also agrees not to use any of the Licensor’s trademarks as any part of the name under which the Licensee conducts its business.

 

11. CONFIDENTIAL INFORMATION

11.1 If during the performance of its obligations under this licence either party (“the Receiving Party”) is exposed to any information of the other (“the Disclosing Party”) which the Disclosing Party identifies as being of a confidential or sensitive nature, the Receiving Party shall respect the confidentiality of such information and will not use it save insofar as its use is necessary in the performance of its obligations under this licence and the Receiving Party shall restrict dissemination of such information to its employees on a need-to-know basis.

11.2 The obligations accepted by the Receiving Party under Clause 10.1 above shall not apply to any material which:

11.2.1 is already known to the Receiving Party; or

11.2.2 is public knowledge or enters the public domain without fault on the Receiving Party’s part; or

11.2.3 is lawfully received from a third party; or

11.2.4 is ordered to be disclosed by a court or other tribunal of competent jurisdiction.

11.3 The obligations upon the Receiving Party under Clause 10.1 shall not oblige the Receiving Party to exercise a higher degree of care towards the Disclosing Party’s confidential information than it does towards its own information of a like nature.

 

12. NOTICE

Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.

 

13. NO ASIGNMENT

Neither this Agreement nor any interest in this Agreement may be assigned by Licensee without the prior express written approval of Developer.

 

14 FINAL AGREEMENT

This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.

 

15. HEADINGS

Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

 

16. SEVERABILITY

In the event that any of these terms and conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such terms, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.

 

17. LAW

This Agreement shall be governed by and construed in accordance with the laws of England and shall be subject to the jurisdiction of the English Courts.

 

18. WAIVER

Failure or neglect by either party to enforce at any time any of the provisions of this Agreement is not to be construed or deemed to be a waiver of that party's rights under this Agreement.